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India surrogacy change cuts off Aussie parents

Under the old laws, hundreds of Australians flew to India every year to become parents.

Michaela Rehle: Reuters, file photo

Changes to commercial surrogacy arrangements in India, introduced just before Christmas, have cut off one of the more popular avenues for Australians wanting to become surrogate parents.

While heading overseas for commercial surrogacy is illegal in Queensland, New South Wales and the ACT, hundreds of Australians still flew to India every year to become parents.

But now the Indian government has issued a directive that only couples who have been married for more than two years can enter into commercial surrogacy arrangements, and only if it is legal in their home country.

Queensland lawyer Stephen Page - a surrogacy specialist who has represented many Australian surrogate parents - says the policy changes in India have already had a huge impact.

"Essentially, if you want to go to India in future for surrogacy, you've got to be married for a minimum of two years - gay marriage is excluded - and surrogacy must be legal back home," he said.

"The only place where commercial surrogacy can occur in Australia is the Northern Territory.

"So unless you're in a heterosexual, married relationship for two years and you're living in the Northern Territory, you can forget about going to India."

Mr Page says the majority of people who went to India before the law was changed were not married.

"They were either living in a de facto relationship or they're in a same-sex relationship or they were singles," he said.

"I believe instead of about 200 children a year being born to Australian-intended parents a year, it will be down to five or 10."

He says the rule change will not stop Australians entering into commercial surrogacy arrangements overseas. They will simply look elsewhere.

"The strange thing is, it's outlawed at the state level, but at the federal level it's not," he said.

"At the federal level, you can go overseas and all that you need to establish is that the child is yours and then the child is entitled to Australian citizenship."

Legal headache

Surrogacy Australia president Sam Everingham says many Australians with incomplete commercial surrogacy deals in India are now in limbo.

He says it would be far preferable for Australia to regulate commercial surrogacy at home.

"It's become a legal headache for many courts in Australia dealing with the unintended consequences of surrogacy," he said.

"If we had arrangements in Australia where commercial arrangements were possible, it would make it much easier for the kids that are born, as well as the parents."

He says commercial systems can operate well and provide positive outcomes for children, surrogates and parents.

"I think there's a lot to be said for keeping these arrangements all happening in the same country," he said.

"You avoid issues like accusations of exploitation of families from less well-off backgrounds, and it's been clear from systems in place in US states like California and Minnesota that commercial systems can operate very well.

"Despite the laws we've had against surrogacy, a lot of families go overseas and ignore those laws. So I think it will be a much better outcome if we could get those sorts of arrangements and much better access to surrogates in Australia.

"Even if it's not commercial, even if it's just surrogates being able to advertise that they're willing to carry in Australia, it would be a start."